Pontchartrain Natural Gas System, k/d/s Promix, L.L.C., and Acadian Gas Pipeline System v. Texas Brine Company, LLC

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2022 CA 1031

PONTCHARTRAIN NATURAL GAS SYSTEM, KID/ S PROMIX, L.L.C.
and

ACADIAN GAS PIPELINE SYSTEM

VERSUS

TEXAS BRINE COMPANY, LLC, et al

Judgment Rendered. MAY 0 9 2023

Appealed from the
23rd Judicial District Court
In and for the Parish of Assumption
State of Louisiana
Case No. 34,265

The Honorable Thomas J. Kliebert, Jr., Ad Hoe, Judge Presiding

Leopold Z. Sher Attorneys for Defendant/ Third-
James M. Garner Party Plaintiff/Appellant
Peter L. Hilbert, Jr. Texas Brine Company, LLC
Martha Curtis

Jeffrey D. Kessler
New Orleans, LA

Travis J. Turner
Gonzales, LA

Glen E. Mercer Attorneys for Defendants/ Appellees

Kourtney Twenhafel Zurich American Insurance Company,
New Orleans, LA Steadfast Insurance Company, and
American Guarantee and Liability
John K. Daly, pro hoc vice Insurance Company
Denver, CO

1- 11

y-
4, ipeo '
H

Martin A. Stern Attorneys for Defendant/ Appellee
Leigh Ann Schell Occidental Chemical Corporation
Raymond P. Ward
New Orleans, LA

Kathy Patrick, pro hac vice
Sam W. Cruse, pro hac vice
Laura Kissel Cassidy, pro hac vice
Caitlin Halpern, pro hac vice
Houston, TX

BEFORE; THERIOT, HOLDRIDGE, AND WOLFE, JJ.
2

THERIOT, J.

In this appeal, Texas Brine Company, LLC (" Texas Brine") challenges the

trial court' s March 25, 2021 judgment granting Zurich American Insurance

Company, Steadfast Insurance Company, and American Guarantee and Liability

Insurance Company, LLC' s ( collectively, " Zurich") motion for summary judgment

and, likewise, sustaining Zurich' s peremptory exception raising the objection of no

cause of action. The judgment dismissed with prejudice Texas Brine' s petition to

annul an appellate court judgment rendered by this court on October 11, 2018, in

docket number 2018 CA 0244, which Texas Brine maintains was not randomly

allotted as required by Louisiana law. Also, in its March 25, 2021 judgment, the

trial court denied Zurich' s request for reasonable costs and attorneys' fees, which

Zurich challenges herein. Additionally, Occidental Chemical Corporation

Oxy") 2 answered Texas Brine' s appeal, requesting this court reverse or vacate

the trial court' s overruling of its peremptory exception raising the objection of

peremption, seeking a modification of the trial court' s denial to award Oxy

reasonable costs and attorneys' fees, as well as requesting from this court

reasonable costs and attorneys' fees associated with defending Texas Brine' s

appeal.

The same issues before us in the instant appeal were recently decided by

another panel of this court in a related appeal. In Pontchartrain Natural Gas

System v. Texas Brine Company, LLC, 2022- 0990 ( La. App. 1st Cir. 3116123),

So. 3d , 2023 WL 2531173, this court affirmed in part and vacated in part a

Louisiana Code of Civil Procedure article 2004( C) provides, "[ t] he court may award reasonable
attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds."

2 Although this specific appeal addresses the district court' s granting of Zurich' s motion for
summary judgment and peremptory exception raising the objection of no cause of action,
Occidental Chemical Corporation was the subject defendant in the companion appeal, 2022 CA
0990, in which Texas Brine sought to annul another judgment from this court, all of which was
pled by Texas Brine in the same petition to annul, and which Texas Brine noticed in its singular
Petition for Devolutive Appeal.

3

similar judgment, rendered the same day, by the same trial court judge, and

originating from the same trial court docket number, granting Oxy' s motion for

summary judgment and sustaining Oxy' s peremptory exception raising the

objection of no cause of action, as well as awarding $ 5, 000.00 in reasonable costs

and attorneys' fees to Oxy, all concerning Texas Brine' s identical claim that this

court did not randomly allot, as required by Louisiana law, another judgment from

this court — 2018 CA 0241. Of note, Texas Brine challenged both of this court' s

prior judgments in 2018 CA 0241 and 2018 CA 0244 in the same, underlying

petition to annul.

As such, and after a thorough review of the record, we find no material

distinctions between the evidence and arguments asserted in this appeal and those

presented in Pontchartrain. The exact same background, issues, and assignments

of error raised by Texas Brine in this case have already been thoroughly discussed

in Pontchartrain, which we are bound to follow under the " law of the circuit

doctrine," which requires us to follow our prior decisions. See Pontchartrain

Natural Gas System v. Texas Brine Company, LLC, 2018- 0001 ( La. App. l st

Cir. 6/ 4/ 18), 253 So.3d 156, writ denied, 2018- 1124 ( La. 9/ 28/ 18), 253 So. 3d 147.

Accordingly and similarly, we conclude that Texas Brine' s allegations of " ill

practices"
on the part of this court' s random allotment of appeals are merely

conclusory. There is no showing of a deprivation of Texas Brine' s, or any other

parties', legal rights. Texas Brine failed to demonstrate how it was deprived of the

fundamental opportunity to fairly present its case to this court in the appeal with

docket number 2018 CA 0244 or how this court' s allotment system caused or was

in any way related to any adverse judgment. Texas Brine fully litigated docket

number 2018 CA 0244 up and until the Louisiana Supreme Court denied writs on

March 6, 2019. Pontchartrain Natural Gas System v. Texas Brine Company,

4

LLC, 2019- 0080 ( La. 316119), 264 So. 3d 1204. See Pontchartrain, 2023 WL

2531173 at * 4.

We issue this summary disposition in accordance with Uniform Rules of

Louisiana Courts of Appeal, Rule 2- 16. 2( A)( 2), ( 4), and ( 6), and vacate the portion

of the trial court' s March 25, 2021 judgment sustaining the peremptory exception

raising the objection of no cause of action filed by Zurich American Insurance

Company, Steadfast Insurance Company, and American Guarantee and Liability

Insurance Company, LLC as moot. We further affirm the portion of the judgment

granting the motion for summary judgment filed by Zurich American Insurance

Company, Steadfast Insurance Company, and American Guarantee and Liability

Insurance Company, LLC that dismissed Texas Brine Company, LLC' s petition to

annul this court' s October 11, 2018 judgment rendered in docket number 2015 CA

0244 and all of its claims against Zurich American Insurance Company, Steadfast

Insurance Company, and American Guarantee and Liability Insurance Company,

LLC. Furthermore, pursuant to La. Code Civ. P. art. 2004( C), we award Occidental

Chemical Corporation $ 1, 200.00 in attorney fees3 for successfully defending this

appeal. All costs of this appeal are assessed to Texas Brine Company, LLC.

VACATED IN PART; AFFIRMED IN PART; REQUEST FOR
ATTORNEY FEES GRANTED.

3 We note, in its appellee brief, Zurich requested damages for a frivolous appeal pursuant to La.
Code Civ. P. art. 2164. However, the proper procedure for an appellee to request frivolous
appeal damages is to file either an answer to the appeal or a cross appeal. See La. Code Civ. P.
art. 2133; Donaldson v. Guidry, 2021- 1569 ( La. App. 1st Cir. 7/ 8/ 22), 345 S0. 3d 433, 438, writ
denied, 2022- 01208 ( La. 1118122). As a brief constitutes neither, an appellee cannot recover

damages for taking a frivolous appeal if the damages are first requested in the appellee' s brief.
Donaldson, 345 So. 3d at 438- 39. Therefore, Zurich' s request for frivolous appeal damages is
denied.
5

PONTCHARTRAIN NATURAL GAS STATE OF LOUISIANA
SYSTEM, KID/S PROMIX, L.L.C.
and

ACADIAN GAS PIPELINE SYSTEM COURT OF APPEAL

VERSUS FIRST CIRCUIT

TEXAS BRINE COMPANY, LLC, et al 2022 CA 1031

HOLDRIDGE, J., agreeing in part and dissenting in part.

1 agree in part and dissent in part in this case. I agree with the majority' s

decision vacating the portion of the trial court' s judgment sustaining the peremptory

exception raising the objection of no cause of action as moot. I also agree with the

majority' s decision affirming that portion of the judgment granting the motion for

summary judgment and dismissing Texas Brine Company, LLC' s petition to annul

this court' s previous judgment rendered in docket number 2018 CA 0244. While I

agree with the results and reasoning of the majority opinion, I recognize that in our

civilian system, courts are not bound by prior decisions if those decisions are

contrary to the law. See Bergeron v. Richardson, 2020- 01409 ( La. 6/ 30/ 21), 320

So. 3d 1109, 1116- 17 ( Weimer, GJ., concurring).

However, I disagree with that portion of the judgment awarding Occidental

Chemical Corporation $ 1, 200 in attorney fees pursuant to La. C. C. P. art. 2004( C)

for successfully defending the appeal. Although Occidental Chemical Corporation

Occidental) filed an appellee brief and an answer in this appeal, Occidental does

not refer to the judgment that is on appeal in this matter in favor of Zurich American

Insurance Company, Steadfast Insurance Company, and American Guarantee &

Liability Insurance Company, LLC. Rather, the appellee brief and answer

specifically refer to and seek modification of the trial court' s judgment pertaining to

Occidental in Pontchartrain Natural Gas System v. Texas Brine Company,

LLC, 2022- 0990 ( La. App. 1 Cir. 3/ 16123), So. 3d , wherein this court

awarded it $ 1, 200 on appeal) Louisiana Code of Civil Procedure article 2004( C)

provides that the court may award reasonable attorney fees incurred by the prevailing

party in an action to annul judgment on the grounds of fraud or ill practices. Where

the party answering the appeal has already been awarded attorney fees in the appeal

of the judgment in its favor, it is not appropriate to award it additional attorney fees

in the appeal of a judgment in favor of another party where it admittedly filed

essentially the same brief in both appeals except for some minor editorial changes

and record citations and where the relief it seeks in its answer to the appeal pertains

to the judgment in the previous appeal. The majority gives no basis for its award of

attorney fees to Occidental pursuant to La. C. C. P. art. 2004( C), which is not the

prevailing party in this appeal. I note that Occidental in its answer to the appeal also

sought attorney fees as damages for a frivolous appeal pursuant to La. C.C. P. art.

2164, but the majority did not award attorney fees under this article. For these

reasons, I respectfully dissent from that part of the majority opinion.

1 In its answer to the appeal, Occidental stated, " The trial court' s judgment erroneously overrules
Occidental' s] peremptory exception of peremption. [ Occidental] seeks a modification of the
judgment so as to sustain Occidental' s exception ofperemption."